When is life, life?

LET’S CALL it the case of the missing commutation. It is a mystery that has arisen in hearings of the constitutional motion of convicted killer Sangit Chaitlal whose death sentence was supposed to have been commuted to life imprisonment following the Privy Council’s Pratt and Morgan judgment ten years ago. But, strangely enough, neither Chaitlal’s attorneys nor those of the State have been able to find the document by which the reduction of the sentence was legally effected. How could this be so, since the commutation had to be formally granted by the President who was Mr Noor Hassanli at the time? Indeed, since Chaitlal was one of 42 convicted murderers who had their death sentences commuted as a consequence of the 1993 Pratt and Morgan ruling, we must now wonder whether the commutation documents relating to the other convicts are missing as well. And if they are, how is this unprecedented situation to be resolved?

The court was confronted by another mystery when attorney Mark Seepersad pointed out that Mr Hassanali had written the then Chief Justice Clinton Bernard in 1993 advising him that he was commuting the death sentence of 42 murderers in light of the Privy Council’s order. In turn, the CJ ordered that the applicant be imprisoned for the rest of his natural life. Questioned by Justice David Myers, the attorney said he did not know why the President had written such a letter since the CJ had no authority to commute any sentence. Another of Chaitlal’s lawyers, Avory Sinanan SC, told the judge that, “We are unable to find any document under the hand of the President. We don’t even know if it exists. In his turn, the judge told Chaitlal’s attorneys: “It seems that the State’s inability to produce this document puts you between a rock and a hard place.” Injecting an apparent note of cynicism into the proceedings, Justice Myers observed that if there was no commutation and the Chief Justice had no power to do it, then the applicant should have been hanged. It seems to us that the only person who could solve this mystery is Mr Noor Hassanali himself, the President who was supposed to have formally granted the commutation after Pratt and Morgan. Maybe Mr Hassanali, a former Appeal Court judge, will volunteer to enlighten the Court about the procedure he followed in this matter.

How the case of the missing commutation document will affect the resolution of Chaitlal’s motion we have no idea, but the ground on which it is based is certainly an interesting one. The applicant’s contention, in fact, is one that must be relevant to the cases of all the beneficiaries of Pratt and Morgan, convicted killers whose dates with the hangman have been changed to imprisonment for the rest of their lives. Essentially, Chaitlal’s submission is that in commuting the death penalty to “natural life” the President or the State created a sentence which breaches the separation of powers enshrined in the Constitution. His lawyers argue that life imprisonment as ordered by the Courts have historically come to mean a term of between 15 to 20 years in jail and that, until Pratt and Morgan, no one has ever been sentenced to spend the rest of their lives behind bars. But then, again, the Privy Council ruling imposed an unprecedented situation on our country. How should this problem have been solved?